Shand, (A Child), Re London Borough of Barking & Dagenham v Richards

Service of a collection order is fundamental to committal proceedings for its breach. It is required both by FPR 37.5 and by the terms of the collection order itself. Unless service is proved, the order does not bind the alleged contemnor and committal cannot follow. Lies told in the face of the court may, in suitable circumstances, amount to contempt, but the court must identify and follow the applicable procedure. The judgment also illustrates that an application may properly be withdrawn where the evidential and procedural basis for committal is inadequate.

The London Borough of Barking and Dagenham applied to commit Sharon Shand, the maternal grandmother of Elliana Grace Shand, to prison. The application concerned an alleged breach of a collection order and, alternatively, alleged lies told to the court during the proceedings.

The grandmother had taken Elliana to Jamaica and later returned with her to the United Kingdom. During the hearing, the court found that service of the collection order had not been proved. The grandmother’s evidence also raised the question whether there had been a contempt in the face of the court. The central issues were whether committal for breach could proceed without proof of service and whether the alternative contempt procedure was properly engaged.

1. Committal for breach of the collection order. Applying Re L (a child) [2016] EWCA Civ 173, the court held that service of the collection order was fundamental. It was required by FPR 37.5 and, more fundamentally, by the collection order itself. The order did not bind the grandmother unless it had been served, subject to any applicable proviso.
2. Service had not been proved. The relevant file did not record service, and no witness statements supplied evidence capable of displacing the grandmother’s assertion that she had not been served. That failure was fatal to committal for breach of the order.
3. Contempt in the face of the court. The procedure was identified as arising under FPR R37.12 and Part 3 of the FPR 210, reflecting Wilkinson v S and Anor [2003] 1 WLR 1254. Lies told in the face of the court could, in some circumstances, constitute contempt. The judge remained hesitant that the grandmother’s conduct could properly be categorised in that way on the facts.
4. Counsel for the local authority sought leave to withdraw the committal application. The judge granted leave. The application therefore did not proceed to committal.
5. The court also directed publication of the family’s identities and Elliana’s photograph because her immediate need for safety outweighed her entitlement to privacy. The local authority’s plan, endorsed in earlier proceedings, was for Elliana to be placed with her paternal grandparents.

Not stated in the judgment.